Secrecy, Case By Case

OPINION

August 30, 2002|By Michael Kelly, Washington Post Writers Group

The skeptical citizen should regard with an especially jaundiced eye any judicial pronouncement that reads as if it were written to look mighty fine chiseled on a courthouse frieze. Consider the recent utterings of Judge Damon J. Keith.

Judge Keith, writing the unanimous verdict of a three-judge panel for the 6th U.S. Circuit Court of Appeals, declared on Monday that the federal government had acted unlawfully in adopting a blanket policy to close hundreds of deportation hearings of noncitizens suspected of connection to terrorist activity. "Democracies die behind closed doors," declared the judge. "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation."

This is not legal reasoning. This is preening in a black robe, frieze-language of the finest kind, and nonsense.

"Democracies die behind closed doors." So they do, sometimes. But far more democracies have succumbed to open assaults of one sort or another -- invasions from without, military coups and totalitarian revolutions from within -- than from the usurpation-by-in-camera-incrementalism that Judge Keith fears.

Democracy in America does at this moment face a serious threat. But it is not the threat the judge has in mind, at least not directly. It is true that September's unprecedented mass-slaughter of American citizens on American soil inevitably forced the government to take security measures that infringed on some rights and privileges. But these do not in themselves represent any real threat to democracy. A real threat could arise, however, should the government fail in its mission to prevent another Sept. 11. If that happens, the public will demand, and will get, immense restrictions on liberties. To maintain the security that allows the luxury of democracy, the government must temporarily insult democracy. Which it is, and generally properly, doing.

"Selective information is misinformation." All information, outside of the mind of God, is selective, and is selected, by somebody. News editors select which information constitutes news ("All the News That's Fit to Print") and withhold from the public vast amounts of information deemed not news. Government on every level selects which information concerning its activities it discloses; school systems select the information children will be taught as official knowledge. As the judge may know, jurors are never allowed to consider all the known information in a case; they may consider only the information that the prosecution, the defense and the judge select for them.

Information is especially selective in matters of national security. Much of the information shared by the CIA with selected government officials and members of Congress is kept secret from the larger public by law. The president's national security briefings are conducted behind those democracy-killing closed doors. And, of course, court proceedings involving issues of national security are frequently closed to the press and public.

Nevertheless, and all frieze-language aside, the 6th Circuit made the right ruling. The appeals panel was asked to consider the case of one Rabih Haddad, a native of Lebanon residing in Michigan. As the founder of a Muslim charity strongly believed by the government to be involved in supporting terrorism, Haddad was an excellent candidate for deportation. Certainly, in such a case, the government also enjoys the benefit of doubt in arguing that a deportation hearing be closed to protect ongoing investigations or intelligence sources.

But this is the problem: The government didn't bother to make this argument. Instead, in Haddad's case, and in hundreds of others, the Justice Department relied on a designation of terrorism-related deportation investigations as "special interest" cases. All such cases, chief immigration judge Michael Creppy had ruled, may be kept wholly secret, with no explanations required in each specific case.

Under the 6th Circuit's ruling, the government retains the right to win secrecy on a case-by-case basis, in accord with evidence presented to the immigration judge. And the evidence may be presented in secret, preserving the government's ability to protect the public, ongoing investigations and intelligence security needs. And the government may appeal any judge's ruling on secrecy. And even in a public hearing, the government prosecutors may request that certain evidence be presented in private.

Given all these protections, and even cognizant of the imperatives of wartime, it's hard to see how the Bush Justice Department has any excuse for trying to deal with this issue on the cheap-and-easy. In national crises, curtailments of liberties are sometimes necessary, and in the long run not necessarily harmful. But it's a bad idea to buy them wholesale.